240 Pa. Super. 587 - Commonwealth v. Bird’s Empirical Analysis

Citation profile

11 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 11 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “"Now, there is a question as to what weight if any, you should give to the fact that neither the Commonwealth nor the defendant called a potential witness, a Mr. Rich Ault. The law provides that the jury may infer that a potential witness would have given testimony unfavorable to a party who failed to call him, if it was natural and reasonable to expect the party to call him as a witness, and if there is no satisfactory explanation for why the party failed to do so. The defense contends that the Commonwealth should naturally and reasonably be expected to have called Rick Ault, and that the Commonwealth gave no satisfactory explanation for failing to do so. The Commonwealth contends that it would not be natural and reasonable to expect them, under the circumstances to call Rick Ault, and that, in any event, they did give a satisfactory explanation for why he was not here. These would be matters for you to consider. If you find that it would be natural and reasonable for a party to have called a witness, and that party failed to give a satisfactory explanation for failing to do it, then you may infer that the witness would have given testimony unfavorable to that party. The inference that a potential witness' testimony would have been unfavorable to a party who would have called him, is an inference that you may draw, and not that you are required to draw. It is just the inference that the testimony would be unfavorable, not that he would have given particular testimony. The in”

   1 later decision quote this exact passage
   e.g. Commonwealth v. Newmiller

2. “"The instruction in the instant case permitted the jury to draw an inference against the appellant for the failure to call Ault to the stand. On the basis of the record before us to allow such an inference to be drawn was error. After a thorough review of the record, we are unable to find any evidence which establishes that Ault was `peculiarly within the knowledge and reach' Bentivoglio v. Ralston, 447 Pa. 24, 29 , 288 A.2d 745, 748 (1972) of the appellant such that the jury might be permitted to draw the inference that Ault's testimony would have been unfavorable to the appellant. Absent such evidence the criterion articulated in Commonwealth v. Jones, supra, that the potential witness must be `available to only one of the parties' has not been satisfied." Commonwealth v. Bird, supra, 240 Pa.Super. at 591, 592 , 361 A.2d at 739 . (Footnote omitted.)”

   1 later decision quote this exact passage
   e.g. Commonwealth v. Newmiller

3. “". . . to the extent Ault was `equally available' to both parties, the law is clear that no inference may be drawn against either party. See Bentivoglio v. Ralston, supra, 447 Pa. at 29 , 288 A.2d at 748 . The evidence produced at trial simply does not establish the requisite foundation for permitting the jury to draw an inference against the appellant for the failure to call Ault as a witness." Commonwealth v. Bird, supra, 240 Pa.Super. at 592 , 361 A.2d at 740 .”

   1 later decision quote this exact passage
   e.g. Commonwealth v. Newmiller